WASHINGTON — Oklahoma's high court on Tuesday set the stage for the U.S. Supreme Court to decide whether states can restrict doctors from prescribing two drugs used to induce abortion in the early stages of pregnancy.
The case could be the first test of whether the court's conservative majority will uphold a string of new state laws across the country that seek to strictly regulate legal abortions.
In the last three years, Republican-led states have passed laws to limit abortion without banning it outright. The laws are designed in part to test the Supreme Court's willingness to retreat from the right to abortion established in the 1973 Roe vs. Wade ruling.
Several of the laws would require abortion clinics to expand their facilities to match those of outpatient surgery centers and demand that a doctor have admitting privileges at a nearby hospital. A federal judge in Texas struck down one such provision Monday on the grounds that women can receive emergency care at a nearby hospital regardless of whether her doctor has admitting privileges. Texas officials have filed an emergency appeal with the U.S. 5th Circuit Court of Appeals in New Orleans.
Meanwhile, 12 states, including Arizona, have prohibited nearly all abortions after 20 weeks of pregnancy, instead of the 24 weeks commonly accepted for a viable fetus. Arizona's law was struck down by the U.S. 9th Circuit Court of Appeals in San Francisco, and the state has asked the Supreme Court to revive it.
But first in line at the Supreme Court has been a dispute over whether states may restrict how doctors prescribe medications that are used to induce abortions in the first weeks of pregnancy.
The legislatures in Oklahoma, Texas, Ohio and several other states have adopted laws that require doctors to follow the Food and Drug Administration's protocols for the use of "any abortion-inducing drug." These laws forbid doctors to prescribe medications for "off-label use."
Sponsors of the laws said they wanted to protect the health of women. But medical experts and supporters of abortion rights said the laws would in effect ban medication abortions because the FDA protocol is outdated and conflicts with current medical practice.
Only one drug — mifepristone, or RU-486 — was approved by the FDA in 2000 for inducing early abortions. In the last decade, however, physicians have regularly prescribed an additional drug, misoprostol. These drugs are now used in tandem through the first nine weeks of a pregnancy. Doctors also have prescribed RU-486 in much lower dosages than approved by the FDA.
When doctors sued to challenge the state law, the Oklahoma Supreme Court ruled it unconstitutional last year in a three-paragraph opinion. The state's attorney general appealed to the U.S. Supreme Court and argued that state judges had invalidated a reasonable law designed to regulate the safe practice of medicine.
In June, the justices took an unusual step. They tentatively agreed to take up the Oklahoma case, but first asked the state court to clarify whether the 2011 law "prohibits … the use of misoprostol in conjunction with mifepristone."
In Tuesday's opinion, the Oklahoma court said the law, as written, does prohibit the use of the second drug. It "effectively bans all medication abortions" under current practice, the court said. The judges explained that misoprostol was an abortion-inducing drug and noted that FDA had not approved its use for that purpose.
The judges also noted that a third drug, methotrexate, is commonly used to terminate early ectopic pregnancies. But because the FDA has not formally approved its use for that purpose, it may be not prescribed by doctors in Oklahoma, the judges said.
Nationwide, "96% of the medication abortions in the United States are now provided according to a regimen different from the one described in mifepristone's FDA-approved label," the court said.
Nancy Northup, president of the Center for Reproductive Rights, praised the Oklahoma high court's decision. It "strongly reaffirms that this blatantly unconstitutional law was designed to not only rob women of the safe, legal and effective option of medication to end a pregnancy at its earliest stages, but also threaten the health, lives and future fertility of women suffering ectopic pregnancies," she said.
Now that the Oklahoma court has clarified the state law, the justices will decide whether to grant a full review in the case of Cline vs. Oklahoma Coalition for Reproductive Justice. Lawyers noted that a similar Ohio law was upheld by a federal appeals court last year.